Tort

Tort (Fr. for wrong, from Lat. tortus, twisted, participle of torquere), the technical term, in the law of England, of those dominions and possessions of the British Empire where the common law has been received or practically adopted in civil affairs, and of the United States, for a civil wrong, i.e. the breach of a duty imposed by law, by which breach some person becomes entitled to sue for damages. A tort must, on the one hand, be an act which violates a general duty. The rule which it breaks must be one made by the law, not, as in the case of a mere breach of contract, a rule which the law protects because the parties have made it for themselves. On the other hand, a tort is essentially the source of a private right of action. An offence which is punishable, but for which no one can bring a civil action, is not a tort. It is quite possible for one and the same act to be a tort and a breach of contract, or a tort and a crime; it is even possible in one class of cases for the plaintiff to have the option - for purposes of procedural advantage - of treating a real tort as a fictitious contract; but there is no necessary or general connexion. Again, it is not the case that pecuniary damages are always or necessarily the only remedy for a tort; but the right to bring an action in common law jurisdiction, as distinct from equity, matrimonial or admiralty jurisdiction, with the consequent right to damages, is invariably present where a tort has been committed.

This technical use of the French word tort (which at one time was near becoming a synonym of wrong in literary English) is not very ancient, and anything like systematic treatment of the subject as a whole is very modern. Since about the middle of the 19th century there has been a current assumption that all civil causes of action must be founded on either contract or tort; but there is no historical foundation for this doctrine, though modified forms of the action of trespass - actions in consimili casu, or " on the case " in the accustomed English phrase - did in practice largely supplant other more archaic forms of action by reason of their greater convenience. The old forms were designed as penal remedies for manifest breach of the peace or corruption of justice; and traces of the penal element remained in them long after the substance of the procedure had become private and merely civil. The transition belongs to the general history of English law.

In England the general scope of the law of torts has never been formulated by authority, the law having in fact been developed by a series of disconnected experiments with the various forms of action which seemed from time to time to promise the widest and most useful remedies. But there is no doubt that the duties enforced by the English law of torts are broadly those which the Roman institutional writers summed up in the precept Alterum non laedere. Every member of a civilized commonwealth is entitled to require of others a certain amount of respect for his person, reputation and property, and a certain amount of care and caution when they go about undertakings attended with risk to their neighbours. Under the modern law, it is submitted, the question arising when one man wilfully or recklessly harms another is not whether some technical form of action can be found in which he is liable, but whether he can justify or excuse himself. This view, at any rate, is countenanced by a judgment of the Supreme Court of the United States delivered in 1904. If it be right, the controverted question whether conspiracy is or is not a substantive cause of action seems to lose most of its importance. Instead of the doubtful proposition of law that some injuries become unlawful only when inflicted by concerted action, we shall have the plain proposition of fact that some kinds of injury cannot, as a rule, be inflicted by one person with such effect as to produce any damage worth suing for.

The precise amount of responsibility can be determined only by full consideration in each class of cases. It is important to observe, however, that a law of responsibility confined to a man's own personal acts and defaults would be of next to no practical use under the conditions of modern society. What makes the law of torts really effective, especially with regard to redress for harm suffered by negligence, is the: universal rule of law that every one is answerable for the acts and defaults of his servants (that is, all persons acting under his direction and taking their orders from him or some one representing him) in the course of their employment. The person actually in fault is not the less answerable, but the remedy against him is very commonly not worth pursuing. But for this rule corporations could not be liable for any negligence of their servants, however disastrous to innocent persons, except so far as it might happen to constitute a breach of some express undertaking. We have spoken of the rule as universal, but, in the case of one servant of the same employer being injured by the default of another, an unfortunate aberration of the courts, which started about two generations ago from small beginnings, was pushed to extreme results, and led to great hardship. A partial remedy was applied in 1880 by the Employers' Liability Act; and in 1897 a much bolder step was taken by the Workmen's Compensation Act (superseded by a more comprehensive act in 1906). But, as the common law and the two acts (which proceed on entirely different principles) cover different fields, with a 'good deal of overlapping, and the acts are full of complicated provisos and exceptions, and contain very special provisions as to procedure, the improvement in substantial justice has been bought, so far, at the price of great confusion in the form of the law, and considerable difficulty in ascertaining what it is in any but the most obvious cases. The Workmen's Compensation Act includes cases of pure accident, where there is no fault at all, or none that can be proved, and therefore goes beyond the reasons of liability with which the law of torts has to do. In fact, it establishes a kind of compulsory insurance, which can be justified only on wider grounds of policy. A novel and extraordinary exception to the rule of responsibility for agents was made in the case of trade combinations by the Trade Disputes Act 1906. This has no interest for law as a science.

There are kinds of cases, on the other hand, in which the law, without aid from legislation, has imposed on occupiers and other persons in analogous positions a duty stricter than that of being answerable for themselves and their servants. Duties of this kind have been called " duties of insuring safety." Generally they extend to having the building, structure, or works in such order, having regard to the nature of the case, as not to create any danger to persons lawfully frequenting, using, or passing by them, which the exercise of reasonable care and skill could have avoided; but in some cases of " extra-hazardous " risk, even proof of all possible diligence - according to English authority, which is not unanimously accepted in America - will not suffice. There has lately been a notable tendency to extend these principles to the duties incurred towards the public by local authorities who undertake public works. Positive duties created by statute are on a similar footing, so far as the breach of them is capable of giving rise to any private right of action.

The classification of actionable wrongs is perplexing, not because it is difficult to find a scheme of division, but because it is easier to find many than to adhere to any one of them. We may start either from the character of the defendant's act or omission, with regard to his knowledge, intention and otherwise; or from the character of the harm suffered by the plaintiff. Whichever of these we take as the primary line of distinction, the results can seldom be worked out without calling in the other. Taking first the defendant's position, the widest governing principle is that, apart from various recognized grounds of immunity, a man is answerable for the " natural and probable " consequences of his acts; i.e. such consequences as a reasonable man in his place should have foreseen as probable. Still more is he answerable for what he did actually foresee and intend. Knowledge of particular facts may be necessary to make particular kinds of conduct wrongful. Such is the rule in the case of fraud and other allied wrongs, including what is rather unhappily called " slander of title," and what is now known as " unfair competition " in the matter of trade names and descriptions, short of actual piracy of trade-marks. But where an absolute right to security for a man's person, reputation or goods is interfered with, neither knowledge nor specific intention need be proved. In these cases we trespass altogether at our peril. It is in general the habit of the law to judge acts by their apparent tendency, and not by the actor's feelings or desires. I cannot excuse myself by good motives for infringing another man's rights, whatever other grounds of excuse may be available; xxvrr. 3 and it is now settled conversely, though after much doubt, that an act not otherwise unlawful is not, as a rule, made unlawful by being done from an evil motive. This rule was known some time ago to apply to the exercise of rights of property, and such speculative doubt as remained was removed by the decision of the House of Lords in the leading case of Allen v. Flood (1898, A.C. 1). We now know that it applies to the exercise of all common rights. The exceptions are very few, and must be explained by exceptional reasons. Indeed, only two are known to the present writer - malicious prosecution, and the misuse of a " privileged occasion " which would justify the communication of defamatory matter if made in good faith. In each case the wrong lies in the deliberate perversion of a right or privilege allowed for the public good, though the precise extent of the analogy is not certain at present.' It must be remembered, however, that the presence or absence of personal ill will, and the behaviour of the parties generally, may have an important effect, when liability is proved or admitted, in mitigating or aggravating the amount of damages awarded by juries and allowed by the court to be reasonable. It may likewise be noted, by way of caution, that some problems of criminal law, with which we are not here concerned, require more subtle consideration. However, it is hardly ever safe to assume that the bounds of civil and criminal liability will be found coextensive. Perhaps we may go so far as to say that a man is neither civilly nor criminally liable for a mere omission (not being disobedience to a lawful command which he was bound to obey), unless he has in some way assumed a special duty of doing the act omitted.

We have already had to mention the existence of grounds of immunity for acts that would otherwise be wrongful. Such grounds there must be if the law is to be enforced and justice administered at all, and if the business of life is to be carried on with any freedom. Roughly speaking, we find in these cases one of the following conditions: Either the defendant was executing a lawful authority; or he was justified by extraordinary necessity; or he was doing something permitted by legislation for reasons of superior utility, though it may produce damage to others, and either with or without special provisions for compensating damage; or he was exercising a common right in matters open to free use and competition; or the plaintiff had, by consent or otherwise, disabled himself from having any grievance. Pure accident will hardly seem to any one who is not a lawyer to be a special ground of exemption, the question being rather how it could ever be supposed to be a ground of liability. But it was supposed so by many lawyers down to recent times; the reason lying in a history of archaic ideas too long to be traced here. Exercise of common rights is the category where most difficulty arises. Here, in fact, the point at which a man's freedom is limited by his neighbour's has to be fixed by a sense of policy not capable of formal demonstration.

As Justice Holmes of the Supreme Court of the United States has said, we allow unlimited trade competition (so long as it is without fraud) though we know that many traders must suffer, and some may be ruined by it, because we hold that free competition is worth more to society than its costs. A state with different economic foundations might have a different law on this, as on many other points. This freedom extends not only to the exercise of one's calling, but to choosing with whom and under what conditions one will exercise it. Also the law will not inquire with what motives a common right is exercised; and this applies to the ordinary rights of an owner in the use of his property ' It was formerl y supposed that an action by a party to a contract against a third person for procuring the other party to break his contract was within the same class, i.e. that malice must be proved. But since Allen v. Flood, and the later decision of the House of Lords in Quinn v. Leathern (1901, A.C. 495), this view seems untenable. The ground of action is the intentional violation of an existing legal right; which, however, since 1906, may be practised with impunity in the United Kingdom " in contemplation or furtherance of a trade dispute ": Trade Disputes Act, § 3.

as well as to the right of every man to carry on his business.' Owners and occupiers of immovable property are bound, indeed, to respect one another's convenience within certain limits. The maxim or precept Sic utere tuo ut alienum non laedas does not mean that I must not use my land in any way which can possibly diminish the profit or amenity of my neighbour's. That would be false. It is a warning that both his rights and mine extend beyond being free from actual unlawful entry, and that if either of us takes too literally the more popular but even less accurate maxim, " Every man may do as he will with his own," he will find that there is such a head of the law as nuisance.

From the point of view of the plaintiff, as regards the kind of damage suffered by him, actionable wrongs may be divided into four groups. We have some of a strictly personal kind; some which affect ownership and rights analogous to ownership; some which extend to the safety, convenience and profit of life generally - in short, to a man's estate in the widest sense; and some which may, according to circumstances, result in damage to person, property or estate, any or all of them. Personal wrongs touching a man's body or honour are assault, false imprisonment, seduction or " enticing away " of members of his family. Wrongs to property are trespass to land or goods, conversion" of goods (i.e. wrongful assumption of dominion over them), disturbance of easements and other individual rights in property not amounting to exclusive possession. Trespass is essentially a wrong to possession; but with the aid of actions " on the case " the ground has been practically covered. Then there are infringements of incorporeal rights which, though not the subject of trespass proper, are exclusive rights of enjoyment and have many incidents of ownership. Actions, in some cases expressly given by statute, lie for the piracy of copyright, patents and trade marks. Wrongs to a man's estate in the larger sense above noted are defamation (not a strictly personal wrong, because according to English common law the temporal damage, not the insult, is, rightly or wrongly, made the ground of action); deceit, so-called " slander of title " and fraudulent trade competition, which are really varieties of deceit; malicious prosecution; and nuisance, which, though most important as affecting the enjoyment of property, is not considered in that relation only. Finally, we have the results of negligence and omission to perform special duties regarding the safety of one's neighbours or customers, or of the public, which may affect person, property, or estate generally.

The law of wrongs is made to do a great deal of work which, in a system less dependent on historical conditions, we should expect to find done by the law of property. We can claim or reclaim our movable goods only by complaining of a wrong done to our possession or our right to possess. There is no direct assertion of ownership like the Roman vindicatio. The law of negligence, with the refined discussions of the test and measure of liability which it has introduced, is wholly modern; and the same may be said of the present working law of nuisance, 1 The rule that a man's motives for exercising his common rights are not examinable involves the consequence that advising or procuring another, who is a free agent, to do an act of this kind can, a fortiori, not be an actionable wrong at the suit of a third person who is damnified by the act, and that whatever the adviser's motives may be. This appears to be included in the decision of the House of Lords in Allen v. Flood. That decision, though not binding in any American court, is approved and followed in most American jurisdictions. It is otherwise where a system of coercion is exercised on a man's workmen or customers in order to injure him in his business. The extension of immunity to such conduct would destroy the value of the common right which the law protects: Quinn v. Leathem. The coercion need not be physical, and the wrong as a whole may be made up of acts none of which faken alone would be a cause of action. In this point there is nothing novel, for it is so in almost every case of nuisance. Conspiracy is naturally a frequent element in such cases, but it does not appear to be necessary; if it were, millionaires and corporations might exceed the bounds of lawful competition with impunity whenever they were strong enough. The reasons given in Quinn v. Leathern  are many and various, but the decision is quite consistent with Allen v. Flood. However, the Trade Disputes Act will probably have its intended effect of reducing the law on this head to relative insignificance in England.

though the term is of respectable antiquity. Most recent of all is the rubric of " unfair competition," which is fast acquiring great importance.

It will be observed that the English law of. 'torts answers approximately in its purpose and contents to the Roman law of obligations ex delicto and quasi ex delicto. When we have allowed for the peculiar treatment of rights of property in the common law, and remembered that, according to one plausible theory, the Roman law of possession itself is closely connected in its origin with the law of delicts, we shall find the correspondence at least as close as might be expected a priori. Nor is the corres'pondence to be explained by borrowing, for this branch of the common law seems to owe less to the classical Roman or medieval canon law than any other. Some few misunderstood Roman maxims have done considerable harm in detail, but the principles have been worked out in all but complete independence.

A list of modern books and monographs will be found at the end of the article on " Torts " by the present writer in the Encyclopaedia of the Laws of England (2nd ed.). Among recent editions of works on the law of torts and new publications the following may be mentioned here: Addison, by W. E. Gordon and W. H. Griffith (8th ed., 1906); Clerk and Lindsell, by Wyatt Paine (4th ed., 1906); Pollock (8th ed., 1908); Salmond, The Law of Torts (2nd ed., 1910). In America: Burdick, The Law of Torts (1905); Street, The Foundations of Legal Liability (1906), 3 vols. of which vol. i. is on Tort. (F. Po.)